How to Win an $18 Billion Environmental Settlement

If you haven't read Patrick Radden Keefe's New Yorker piece, Reversal of Fortune, about the 18-year legal battle over the environmental destruction Texaco left in Ecuador, get to it. Along with being a great piece of long form journalism, it describes the astoundingly uphill battle that plaintiffs in developing countries (and probably plenty of other countries) face in bringing lawsuits against multinational corporations which have plundered their land.

Since 1993, a group of Ecuadorans had been pursuing an apparently fruitless legal struggle to hold Texaco responsible for environmental destruction in the Oriente. During the decades when Texaco operated there, the lawsuit maintained, it dumped eighteen billion gallons of toxic waste. When the company ceased operations in Ecuador, in 1992, it allegedly left behind hundreds of open pits full of malignant black sludge. The harm done by Texaco, the plaintiffs contended, could be measured in cancer deaths, miscarriages, birth defects, dead livestock, sick fish, and the near-extinction of several tribes; Texaco’s legacy in the region amounted to a “rain-forest Chernobyl.”

Eventually, after 18 years of struggling, an Ecuadorian judge awarded $18 billion to the plaintiffs; that included many indigenous people who lived on the despoiled land. The article, which bears the subhead "A crusading lawyer helped Ecuadorans secure a huge environmental judgment against Chevron. But did he go too far?", investigates both the case against Chevron, and the admittedly dubious tactics of Steve Donziger, the lawyer.

The case against Chevron seemed nothing but clearcut: They had decimated huge swaths of land, and left gigantic toxic waste pools all over the rainforest – where tens of thousands of people lived. Then they left town. Yet Texaco, then Chevron (who bought Texaco), claimed no wrongdoing at all.

As for Donziger, he allegedy "went to far" by constantly pushing the envelope – inviting documentary crews down to cover the story, deliberately holding press conferences with the indigenous folks dressed in native garb, strategically engaging local judges and politicians, soliciting investment from private firms to help fund his sprawling lawsuit. But all that reveals to me to be the deployment of some rather brilliant tactics to sustain a fight against one of the largest, most profitable, and most powerful companies in the world. How else do you go up against a company that can hire the world's best and most expensive lawyers, exert massive political influence on a nation once dependent on oil revenues to survive, and dump millions into a PR counterpunch?

You do what Steve Donziger did, that's how – you get creative. Ideally, you do it more cautiously (he became far too casual around camera crews) and a bit more above board. But it seems to me that if David is going to win in real life, he's got to throw sand in Goliath's eyes and kick him in the nuts.

Last week, an Ecuadorian court of appeals upheld the decision, and Chevron is still on the hook for $18 billion.